Why the Supreme Court special education case about a boy with autism is so sickening

There is something sickening about a case the Supreme Court just heard about a boy with autism and what level of public education he — and other students with disabilities — deserve.

Here’s some background: The Individuals with Disabilities Education Act is a federal law requiring public schools to provide children with disabilities a “free appropriate public education.” Students in special education get “individualized education programs, or IEPs, or blueprints that spell out supports and goals for each child. The Supreme Court ruled decades ago that IEPs must lay out plans that provide some educational benefit, but it didn’t set a benefit standard, and lower courts have been divided over what it should be. Some have required a substantial — or “meaningful” educational benefit — while others require only a de minimis — or anywhere above trivial — educational benefit.

Now the Supreme Court — which held a hearing in the case Wednesday — is being asked to decide on a standard, which is essentially the same as deciding whether the United States really cares about providing all students a free and appropriate public education, and whether it is wholly committed to helping families that have children with disabilities.

These are the facts of the court case, which could affect millions of children with disabilities and the public schools they attend:

A boy named Drew was diagnosed with autism at age 2, affecting his cognitive functioning, language and reading skills, and his social and adaptive abilities. From preschool through fourth grade, he received special education services in schools in Colorado’s Douglas County district.

By fourth grade, his parents saw his behavior get increasingly worse. The 10th Circuit Court of Appeals, which got involved in this case, said fourth grade was “especially rocky.”

Drew exhibited multiple behaviors that inhibited his ability to access learning in the classroom. In the past, he has climbed over furniture and other students, hit things, screamed, ran away from school, and twice removed his clothing and gone to the bathroom on the floor of the classroom.

Drew’s parents said that although they saw some progress in Drew, it was minimal, so they pulled him from the public school system and placed him in a private school that used interventions that experts consider effective for many children with autism. Reports about his progress under an intervention called ABA were very positive, with “great” behavioral gains that led to an ability to pay more attention in class, complete math and verbal skills work and interact with peers and teachers.

Under the federal law called the Individuals With Disabilities Education Act (IDEA), parents can seek tuition reimbursement from the school district and can win if several conditions are met. One of them is that their son wasn’t getting enough “educational benefit” from the public schools. Drew’s parents applied for reimbursement — arguing that the public district had not provided him with a free and appropriate public education. They were denied by the school system. That started a trek through the courts, leading to the Supreme Court, which is reviewing a 2015 decision by the 10th Circuit, which upheld the school system’s decision, using a very low standard for educational progress.

What is enough educational benefit? That’s what the Supreme Court is being asked to consider, and that, when you think about it, is where this case gets ugly.

Remember that we are talking about young people with disabilities — some of them so severe that a child might, for example, have the intellectual capacity of a 6-month-old, or have frequent disruptive seizures — and their families, some of whom have daily burdens that others can’t begin to imagine.

So is minimal educational benefit enough? You may not know exactly what “minimal” is, but by definition, you wouldn’t want that to be the standard for your child. Is “some” benefit — which courts have said means progress that is barely above trivial — enough for your child — or somebody else’s? (Some judges have said it was.) Or do students with disabilities deserve a standard requiring “meaningful” benefit, and, if so, what does “meaningful” mean? Should the standard be “appropriate”? During the Wednesday hearing, nine standards were mentioned in the proceedings within half an hour.

Should children with any disability be at the mercy of a standard that depends on the federal appellate jurisdiction in which his school district is located?

The Supreme Court justices on Wednesday seemed to be dissatisfied with the 10th Circuit’s ruling that public schools can meet IDEA requirements by providing an education to students with disabilities that is more than trivial, but there was no seeming direction indicated about what standard they do think makes sense.

In the IDEA legislation, Congress set a maximum target for the federal contribution to special education spending equal to 40 percent of the estimated excess cost of educating children with disabilities. Thus, if the program were “fully funded,” the states would receive their maximum grants, calculated at 40 percent of the national average per pupil expenditure (APPE) times the number of children with disabilities served in the school year 2004-2005, adjusted for population changes. Under the act, the count of children with disabilities cannot exceed 12 percent of the state’s total school population.

For FY 2014, IDEA federal funding covered 16 percent of the estimated excess cost of educating children with disabilities, less than in FY 2008 when federal funding covered 17 percent of the cost and well below FY 2009 when additional funding through the American Recovery and Reinvestment Act covered 33 percent of the cost. IDEA Part B “full funding” for FY 2014 would have amounted to approximately $28.65 billion, or roughly $17.17 billion more than was actually appropriated. The shortfall in IDEA funding has been assumed by the states and local school districts.

Yet there is something chilling about some of the debate about this issue. The debate is being played out in legalese — there’s lots of talk about “procedure” — in the world of words rather than people. As Supreme Court Justice Samuel A. Alito Jr. said in Wednesday’s hearing: “What is frustrating about this case and this statute is we have a blizzard of words.”

A blizzard of words that seem to fly right over the actual people being affected. As Gary Mayerson, a civil rights lawyer and board member of Autism Speaks, an advocacy organization, said in this article by my colleague Emma Brown: “I can’t even believe that this is really a question for the court to wrestle with.”